Category: Social Media, YouTube, Money, Profits, Child Labor Laws

The Oxford English dictionary defines a celebrity as “the state of being well known, widely discussed, or publicly esteemed.” This broad and general definition can be attributed to any person who obtains publicity and a following, whether it be through sports, acting, modeling, music, etc… The concept of celebrities in our society has existed for centuries, dating back to Plato’s Symposium identifying Athenian celebrities such as the politician Alcibiades. When you think of a celebrity today, you may think of anyone ranging from Ryan Reynolds to Serena Williams.

The distinction here between celebrities and influencers lays heavily on building the authentic relationship with their audience. The Oxford English Dictionary broadly defines an influencer as a person “who influences”. Individuals are using platforms like TikTok or Instagram to post videos about their daily lives, share the new fashion trends of the season, and more. They build a career from making this content; collecting a following of social media users who watch, like, comment, repost, and most importantly, purchase what is being endorsed. It varies on the size of their followings, but influencers are an individual in a position of authority with fame and knowledge that obtains an authentic relationship with their audience.

 

Today however, the progression of social media has resulted in influencing becoming a sought after occupation. Brands are now not limited to traditional endorsements like commercials and magazines. With the rapid and accelerating integration of social media into our society, brands can now utilize cost-effective marketing strategies such as influencer endorsements. According to the Digital Marketing Institute, the influencer marketing industry is expected to reach approximately $32 billion by the end of 2025.

By using influencers to endorse their products, brands are reaching to highly engaged audiences through the influencers’ authority and authenticity. Influencer endorsements deals are “mutually beneficial collaborations” where brands partner with social media influencers to market and endorse their products. Given that influencers build their following and make their content based around this idea of authenticity, these influencer endorsement deals build greater credibility with the audience. By using influencers, brands are also using their followings, expanding outside of being limited to just individuals who are familiar with the brand. Two hundred million Instagram users visit a business account per day, and 80% of Instagram users are researching a company’s product or service on the popular social media platform. Brands utilize not only social media, but influencers who speak on their behalf for marketing purposes.

Essentially influencers become third-party contractors with such brands. They enter into contracts with brands that outline the terms of their employment, which is typically just being hired to post. This might seem like a simple enough career – post, promote, and get paid. However, behind the appealing concept of getting paid to post are underlying legal implications associated with content ownership and the Federal Trade Commission (FTC) guidelines.

Title 17 of the Copyright Law of the United States establishes that a work is created when it is fixed in a copy for the first time and when it is prepared over a period of time, any portion of it fixed at any time constitutes the work. This is important considering many endorsements deals content are not made in a single take. By “fixed”, Title 17 mans the work is in a tangible medium of expression in a copy or is able to be perceived, reproduced, or communicated. Title 17 also establishes that a work-made-for-hire is any work made by an employee within the scope of their employment, or a work specifically ordered for use as a contribution to a collective work.

If an influencer-brand contract fails to define ownership, content disputes may arise. However, under U.S. Copyright Law, the default rule applies, meaning the author who made the content owns the copyright from the moment it is fixed, in this case, that being the influencer. A brand can own influencer content through a written assignment signed by the creator, or a valid work-made-for-hire agreement under 17 U.S.C. §101. Content ownership is not the only legal area that influencers need to worry about. The FTC also has endorsement guidelines that influencers need to follow, such as disclosing that you are being sponsored and disclosing the connection between the endorser and marketer. Although the guides are not regulations, many lawsuits can and have been brought against the influencer, and brand, for unfair and deceptive marketing under FTC Act Section 5a, 15 U.S. Code §45. The FTC Act and Endorsement Guides essentially prohibits influencers and brands from using deceptive marketing tactics by not disclosing they are in an agreed sponsorship, and therefore upholding the authenticity of influencing.

Content ownership and FTC endorsements are only two implications that arise with influencer marketing. As influencing now rises into a new era of being a career, many influencers lack the power or experience to understand all implications associated with influencer endorsements. The good news is influencers’ deals are now covered under a SAG-AFTRA contract. SAG-AFTRA is the Screen Actors Guild and the American Federation of Television and Radio Artists unions that represents approximately 160,000 actors, announcers, broadcast journalists, and a wide variety of other media professionals, now including influencers. SAG-AFTRA now has an influencer agreement that covers influencers with a union contract when hired by a brand to produce, perform, and distribute sponsored content on social media. How does this work? The influencers first bargain their rates with the brand, and once a contract is finalized, they use their business entity to sign up with SAG-AFTRA as the direct signatory for the project, ensuring a covered brand deal. A project qualifies if it is influencer-generated sponsored content made for distribution on a social media platform, including video or voiceover performance, with sole responsibility by the influencer for the production and distribution of the content, you are enlisted as a business entity, there is a contract with the advertiser, and you own the final content.

The influencer agreement under SAG-AFTRA is just one step in the right direction of ensuring influencers are properly represented and protected. The progression of social media is inevitable, and with that comes more posts and more influencers. It is a new concept of a career that is going to continue to develop rapidly as more social media platforms emerge, and as more brands shift away from traditional ads and into influencer marketing. With such, it is important to understand the implications behind having a career as an influencer and avoiding liability as an influencer.

Francesca Rocha

 

Have you ever found yourself stuck in an endless loop of viewing social media posts as time flies by? It’s likely. On average, people spend about 2 hours and 24 minutes on social media daily, that is 144 minutes. It is time for users to take back control of their daily lives. But how? Well, Ethan Zuckerman is at the forefront of empowering users to control their social media algorithms.

 

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Unfollow Everything 2.0

When users of Facebook friend request another person upon being accepted, they automatically “follow” the person. This means they will see all their posts on their Home Page. Following every page, friend, or group you are involved with is what creates the infinite loop of posts users get sucked into. Right now, there is no extension or tool that gives users the ability to combat infinite scrolling on social media platforms.

Ethan Zuckerman is in the process of creating a browser extension that lets Facebook users unfollow all of their friends, groups, and pages with the click of a button. 

Here’s how it works: When a user activates the browser extension, Unfollow Everything 2.0 causes the user’s browser to retrieve their list of friends, groups, and pages from Facebook. The tool would then comb through the “followed” list, causing the browser to ask Facebook to unfollow each friend, group, or page on the users list. The tool would allow the user to select friends, groups, and pages to refollow or gives the option keep their newsfeed blank and view only content that they seek out. It would also encrypt the user’s “followed“ list and save it locally on the user’s device, which would allow the user to keep the list private while still being able to automatically reverse the unfollowing process. By unfollowing everything, users can eliminate their entire News Feed. This leaves them free to use Facebook without the feed or to more actively curate it by refollowing only those friends and groups whose posts they really want to see.

Note that this isn’t the same as unfriending. By unfollowing their friends, groups, and pages, users remain connected to them and can look up their profiles at their convenience.

Tools like Unfollow Everything 2.0 can help users have better and safer online experiences by allowing them to gain control of their feeds without the involvement of government regulation.

 

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Unfollow Everything 1.0

The original version of the tool ” Unfollow Everything 1.0” was created by British developer Louis Barclay in 2021. Barclay believed that unfollowing everything but remaining friends with everyone on the app and staying in all the user-joined groups forced users to use Facebook deliberately rather than as an endless time-suck.“I still remember the feeling of unfollowing everything for the first time. It was near-miraculous. I had lost nothing, since I could still see my favorite friends and groups by going to them directly. But I had gained a staggering amount of control. I was no longer tempted to scroll down an infinite feed of content. The time I spent on Facebook decreased dramatically. Overnight, my Facebook addiction became manageable.”

Barclay eventually received a cease and desist letter and was permanently banned from using the Facebook platform. Meta claims he violated their terms of service.

Meta’s Current Model

Currently, there is no way for users to not automatically follow every friend, page, and group on Facebook that they have liked or befriended, forcing the endless feed of posts users to see on their timelines.

Metas’ steps to unfollow everything involve manually going through each friend, group, or business and clicking the unfollow button. This task can take hours as users tend to have hundreds of connections; this is likely deterring users from going through the extensive process of regaining control over their social media algorithm.

Meta unfollow someone’s profile Directions:

• Go to that profile by typing their profile name into the search bar at the top of Facebook.
• Click at the top of their profile.
• Click Unfriend/Unfollow, then Confirm

 

 

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Making a Change:

Unfollow Everything 2.0 filed a preemptive lawsuit asking the court to determine whether Facebook users’ news feeds contain objectionable material that users should be able to filter out to enjoy the platform. They argue that Unfollow Everything 2.0 is the type of tool Section 230(c)(2) intended to encourage by giving users more control over their online experiences and adequate ability to filter out content they do not want.

Zuckerman explains users currently have little to no control over how they use social media networks. “We basically get whatever controls Facebook wants. And that’s actually pretty different from how the internet has worked historically.“

Meta, in its defense against Unfollow Everything 2.0 (Ethan Zuckerman), is pushing the court to rule that a platform such as Facebook can circumvent Section 230(c)(2) through its terms of service.

Section 230

Section 230 is known for providing immunity for online computer services regarding third-party content users generate. Section 230(c)(1): “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  While Section 230(c)(1) has been a commonly litigated topic, Section 230(c)(2) however, has been rarely discussed in front of the courts.

So what is Section 230(c)(2)? Section 230(c)(2) was adopted to allow users to regulate their online experiences through technological means, including tools like Unfollow Everything 2.0.  Force V. Facebook (2019) discretions that Section 230(c)(2)(B) provides immunity from claims based on actions that “enable or make available to . . . others the technical means to restrict access to” the same categories of “objectionable” material.  Essentially, Section 230(c)(2)(B) empowers people to have control over their online experiences by providing immunity to the  3rd party developers of extensions/tools that users can use with social networking platforms such as Facebook.

 

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Timeline of Litigation

May 1, 2024: Zuckerman filed a lawsuit asking the court to recognize that Section 230 protects the development of tools that empower social media users to control what they see online.

July 15, 2024: Meta filed a motion to dismiss on the lack of Zuckerman’s standing at the current time.

August 29, 2024: Zuckerman filed an opposition to Meta’s motion to dismiss.

November 7, 2024: Dismissed. However, the researcher could file at a later date because his tool was not complete at the time of the suit. Once developed, it will likely test the law.

Why social media companies do not want this:

Companies like Meta want to prevent these 3rd party extensions as much as possible because it’s in their best interest to continuously keep users engaged. Keeping users on their platform allows Meta to display more advertisements, which is their primary source of revenue. Meta’s large scale of users gives advertisers an excellent opportunity to have their message reach a broad audience. For example, in 2023, Meta generated $134 billion in revenue, 98% of which came from advertising. By making it difficult for users to control their feed adequately, Meta can make more money. If the extension of Unfollow Everything was released to the public, Meta would likely need to shift their prioritization model.

The potential future of section 230:

What’s next? In the event that the court rules in favor of Zuckerman in a future trial, giving users an expanded ability to control their social mediaitIt likely isn’t the end of the problem. Social Media Platforms have previously changed their algorithms to prevent third-party tools from being used on platforms. For example, X (then Twitter)  put an end to Block Party‘s user tool by changing its API (Application Programming Interface) pricing.

Lawmakers will need to step in to fortify users’ control over their Social media algorithms. It is unreasonable to forsee the massive media conglomerates willingly giving up control that would negatively affect their ability to generate revenue.

For now, if users wish to take the initiative and control their social media usage, Android and Apple allow their consumers to regulate specific app usage in their phone settings.

Throughout history, people have often challenged and criticized each other’s ideas and opinions. But with the rise of internet accessibility, especially social media, the way these interactions unfold have changed. Now, it’s easy for anyone to call out someone else’s behavior or words online, and the power of social media makes it simple to gather a large group of people to join in. What starts as a single person’s post can quickly turn into a bigger movement, with others sharing the same views and adding their own criticism. This is cancel culture.

Cancel culture has become a highly relevant topic in today’s digital world, especially because it often leads to serious public backlash and consequences for people or companies seen as saying or doing something offensive. The phrase “cancel culture” first originated from the word cancel, meaning to cut ties with someone. In the abstract, this concept aims to demand accountability, but it also raises important legal questions. When does criticism go too far and become defamation? How does this “online backlash” affect a person’s right to fair treatment? And what legal options are available for those who feel unfairly targeted by “cancel culture”?

 

What Is Cancel Culture?

Cancel culture is a collective online call-out and boycott of individuals, brands, or organizations accused of offensive behavior, often driven by social media. Critics argue that it can lead to mob justice, where people are judged and punished without proper due process. On the other hand, supporters believe it gives a voice to marginalized groups and holds powerful people accountable in ways that traditional systems often fail to. It’s a debate about how accountability should work in a digital age—whether it’s a tool for justice or a dangerous trend that threatens free speech and fairness.

The impact of cancel culture can be extensive, leading to reputational harm, financial losses, and social exclusion. When these outcomes affect a person’s livelihood or well-being, the legal implications become significant, because public accusations, whether true or false, can cause real damage.

In a Pew Research study from September 2020, 44% of Americans reported being familiar with the term “cancel culture,” with 22% saying they were very familiar. Familiarity with the term varies by age, with 64% of adults under 30 aware of it, compared to 46% of those ages 30-49 and only 34% of people 50 and older. Individuals with higher levels of education are also more likely to have heard of cancel culture. Political affiliation shows little difference in awareness, although more liberal Democrats and conservative Republicans tend to be more familiar with the term than their moderate counterparts.

 

Cancel Culture x Defamation Law

In a legal context, defamation law is essential in determining when online criticism crosses the line. Defamation generally involves a false statement presented as fact that causes reputational harm.

To succeed in a defamation lawsuit, plaintiffs must show:

• a false statement purporting to be fact;
• publication or communication of that statement to a third person;
• fault amounting to at least negligence; and
• damages, or some harm caused to the reputation of the person or entity who is the subject of the statement.

US Dominion, Inc. v. Fox News Network, Inc. is a defamation case highlighting how the media can impact reputations. Dominion sued Fox News for $1.6 billion, claiming the network falsely accused it of being involved in election fraud during the 2020 presidential election. Fox News defended itself by saying that it was simply reporting on claims made by others, even if those claims turned out to be false. The case was settled in March 2023 for $787.5 million, showing that media outlets can be held accountable when they spread information without regard for the truth. This is similar to how cancel culture works – individuals or companies can face backlash and reputational damage based on viral accusations that may not be fully verified. Ultimately, the case highlights how defamation law can provide legal recourse for those harmed by false public statements while emphasizing the balance between free speech and accountability in today’s fast paced digital environment.

 

Free Speech vs. Harm: The Tensions of Cancel Culture

Cancel culture brings to light the ongoing tension between free speech and reputational harm. On one hand, it provides a platform for people to criticize others and hold them accountable for their actions. However, the consequences of these public accusations can be severe, leading to job loss, emotional distress, and social isolation—sometimes even beyond what the law might consider fair.

While the First Amendment protects free speech, it doesn’t cover defamatory or harmful speech. This means people can face consequences for their words, especially when they cause harm. But in the realm of cancel culture, these consequences can sometimes feel disproportionate, where the public reaction can go beyond what might be considered reasonable or just. This raises concerns about fairness and justice – whether the punishment fits the crime, especially when the public can amplify the damage in ways that the legal system may not address.

In Cajune v. Indep. Sch. Dist. 194, the Eighth Circuit Court addressed a First Amendment issue regarding the display of “Black Lives Matter” (BLM) posters in classrooms. The case revolves around whether the school district’s policies, which allow teachers to choose whether to display these posters, restrict or support free speech. The plaintiffs argue that this limitation on expression resembles the broader dynamics of cancel culture, where certain viewpoints can be suppressed or silenced. Much like cancel culture, where individuals or ideas are “canceled” for holding or expressing controversial views, this case touches on how institutions control public expression. If the district restricts messages like “All Lives Matter” or “Blue Lives Matter,” it could be seen as institutional “canceling” of dissenting or unpopular opinions, which can show how cancel culture restricts diverse speech. This shows the clash between promoting free speech and managing controversial messages in public spaces.

 

New York’s Anti-SLAPP Law

New York’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) law is also highly relevant in the context of cancel culture, especially for cases involving public figures. This statute protects defendants from lawsuits intended to silence free speech on matters of public interest. In 2020, New York amended the law to broaden protections, allowing it to cover speech on any issue of public concern.

In Gottwald v. Sebert (aka Kesha v. Dr. Luke), New York’s Court of Appeals upheld a high legal standard for defamation claims made by public figures, by requiring them to prove actual malice. This means Dr. Luke would need to show that Kesha knowingly made false statements or acted with reckless disregard. The court’s decision highlights the strong free speech protections that apply to public figures, making it difficult for them to win defamation cases unless they provide clear evidence of malice. This reflects how cancel culture incidents involving public figures are subject to stricter legal standards.

 

Social Media Platforms: Responsibility and Liability

Social media platforms like Twitter, Facebook, and Instagram play an important role in cancel culture by allowing for public criticism and allowing for rapid, widespread responses. Section 230 shields platforms from liability for user generated content, so they typically aren’t held liable if users post defamatory or harmful content. However, recent Supreme Court decisions upholding Section 230 protections highlight the tension between free speech and holding platforms accountable. These decisions have affirmed that platforms aren’t liable for third-party content, which affects the spread of cancel culture by limiting individuals’ ability to hold platforms accountable for hosting potentially defamatory or harmful content.

 

Legal Recourse for the Cancelled

For individuals targeted by cancel culture, legal options are limited but exist. Potential actions include:

• Defamation lawsuits: If individuals can prove they were defamed, they may recover damages.
• Privacy claims: Those whose personal information is shared publicly without consent.
• Wrongful termination suits: If cancel culture leads to job loss, employees may have grounds for legal action if the termination was discriminatory or violated their rights.
• Pursuing legal action can be difficult, especially given New York’s high standard for defamation and its expanded anti-SLAPP protections. In cases involving public figures, plaintiffs face many obstacles due to the requirement of proving actual malice.

 

Looking Ahead: Can the Law Catch Up with Cancel Culture?

As cancel culture continues to evolve, legislature will continue to face challenges in determining how best to regulate it. Reforms in privacy laws, online harassment protections, and Section 230 could provide clearer boundaries, but any change will have to account for free speech protections. Cancel culture poses a unique legal and social challenge, as public opinion on accountability and consequences continues to evolve alongside new media platforms. Balancing free expression with protections against reputational harm will likely remain a major challenge for future legal developments.

In a world now driven by social media, the advertising industry has been taken over by Influencer brand deals and paid product placement.  Businesses, both small and large, are utilizing, and sometimes relying solely, on influencers to promote their products.  Most of these brand deals are negotiated through formal agreements and contracts, clearly outlining the actions expected by each party.  One common way businesses engage in this marketing is by providing influencers with their products in exchange for exposure.  This typically involves the influencer posting a photo or video on social media that reviews or recommends the product to their audience.  Thus, a review or recommendation from an influencer with a bigger audience is far more valuable.  However, for smaller businesses who do not have prepared contracts for this type of exchange, reliance on informal agreements by influencers to review a product can lead to misunderstandings.  This blog post explores a recent TikTok controversy, where this type of scenario unfolded involving beauty influencer Mikayla Nogueira and Matthew Stevens, the owner of Illusion Bronze, a custom self-tanning product.  Could promissory estoppel, a doctrine in contract law, provide a solution where there are informal agreements for a product review?

The Controversy: Mikayla Nogueira and Illusion Bronze

In 2022, Matthew Stevens, the owner of Illusion Bronze, reached out to beauty influencer Mikayla Nogueira via Instagram direct messages, seeking a video reviewing his custom sunless tanner line.  Following their interaction, Nogueira allegedly agreed to review the product “ASAP.”  Nogueira is known for her product reviews, and previously mentioned in one of her videos that one challenge with reviewing products from small, independent brands is their limited inventory.  These startup brands often struggle to handle the sudden surge in demand from her audience, leading to website crashes and quick sellouts, leaving her audience frustrated and feeling snubbed.

Relying on her promise to review the product “ASAP” and keeping in mind Mikayla’s concerns, Stevens, in the form of a loan to shopify, purchased $10,000 worth of inventory, preparing for this surge in sales that typically accompanies a product review from a major influencer like herself. Stevens waited some time with no review, reached out to Mikayla for reassurance that she would stick to her promise (and even receiving it).  After a few months, Stevens posted a video explaining the situation, accusing Nogueira of failing to honor her promise and claiming financial harm to his business with her to blame.

@whatstrending #mikaylanogueira has been called out on TikTok after #illusionbronze ♬ original sound – WhatsTrending

 Nogueira responded by stating that there was no formal agreement obligating her to review the product and that Stevens’ financial decision was his own.  The dispute escalated via public video responses to one another, with Nogueira insisting that Stevens was trying to rely on her audience for his success, while Stevens felt that her promise was the only reason he took his costly steps. Despite there being no formal agreement between the two requiring Nogueira to review the product in a certain time frame, this situation poses an interesting legal question: Could Stevens have a valid claim under promissory estoppel? Or is this just a risk of the business, as some seasoned public figures have commented:

@bethennyfrankel I’m team @Mikayla Nogueira ALL DAY errday🙌🏼🙂 #mikaylanogueira #influencerdrama #illusionbronze #mikaylanogueiradrama #productreviews #smallbusiness #joshuasanders #lymalaser #lyma #tiktokreviews #beautyinfluencer ♬ original sound – Bethenny Frankel

An implied agreement between the two?

Promissory estoppel is a principle in contract law that enforces a promise even in the absence of a formal contract, provided certain conditions are met.  Under this doctrine, if one party makes a promise, and the other party reasonably relies on that promise to their detriment, the promisor is estopped from arguing that the promise is unenforceable due to a lack of formal contract.

To succeed in a promissory estoppel claim, the following elements must be met:

1. A clear and definite promise. There must be a clear promise made by the promisor.
2. Reasonable reliance. The promisee must have reasonably relied on the promise.
3. The promisee must have suffered a detriment due to their reliance on the promise.
4. Injustice. Some remedy is necessary to avoid an injustice.

In this case, Nogueira’s message indicating she would review the product “ASAP” might be considered a clear enough promise to satisfy the first requirement.  Nogueira publicly expressed a valid concern about reviewing small businesses that are not capable of handing a large influx of orders.  Thus, Stevens’ advance of $10,000 worth of product might have been a reasonable step to take in reliance of her promise to review.  Since he was expecting a review from her, likely leading to a high influx of orders, he took steps to prepare his business for this scenario and avoid consumer frustration.  Lastly, Stevens’ financial loss from the unsold inventory and any interest on the loan to Shopify may be considered a detriment as a result of his reliance.  With those first three elements met, there is a possibility that injustice could only be avoided by some action and treating their exchange as a legally binding contract.

From a legal standpoint, Nogueira might defend her position by claiming that her statement was not a formal promise but merely an expression of intent.  This is especially possible given the fact that in her responses, she claimed that she “was going to get to it”, admitting that she took too long and should have made the video quicker. With that, there may be a valid argument that while there was some informal agreement, there was no urgency or deadline in place.  This fact might make it unreasonable to hold Nogueira liable for an implied contract that she did not technically breach (yet).  She might also argue that Stevens acted unreasonably by relying on her statement without securing a formal agreement or awaiting some notification from Nogueira that she had recorded the video and was preparing to post it.

This controversy raises important considerations about the relationship between influencers and brands, and how these type of marketing agreements should be arranged.  In traditional commercial settings, contracts mitigate the risk of situations like the Illusion Bronze controversy by ensuring that both parties understand their obligations.  However, social media interactions are far more casual.  The influencer economy may at times operate on less formal interactions, where DMs and verbal agreements may form the basis of understanding between parties.

Implications for Influencers and Brands

For influencers, the takeaway is clear: avoid making promises unless you are prepared to fulfill them, or at least have a standard process for intake of brand deals which clearly outlines obligations and timelines. This also serves as a lesson to influencers to be mindful that businesses, especially small brands, might be making decisions based on their interactions due to the fact that influencers may serve as a direct liaison to their target audience.  Simple steps such as including disclaimers in communications and clarifying any existence of obligations or guarantees every step of the way could draw the line in avoiding miscommunication and reliance.

For upcoming independent brands, let this be a lesson to formalize agreements before making financial decisions.  While it may feel natural to seek out influencer marketing informally on social media, small businesses should prioritize retaining their capital no matter what these interactions sound like.  There are real economic stakes when it comes to making investments based on words.

Conclusion

The economy is clearly evolving with social media, and along with it evolves the business efforts and strategies of brands everywhere. However, the legal principles governing these interactions remain grounded in traditional doctrines such as promissory estoppel.  These doctrines and the law may not evolve as fast as e-commerce, which could make the difference in an influencer’s liability to brands who seek exposure.  As influencer marketing becomes key in the online marketplace, trust and reputation are everything.  Therefore, both parties stand to benefit from clearer terms and understandings of their obligations to each other.

 

 

 

Social media is a powerful tool for individuals to exchange ideas and messages quickly. What makes Social Media so powerful? It is powerful because it allows individuals to spread and or exchange information in an instant but with anonymity. Social Media platform systems are built in a way that allows for accounts to be published where an individual or even entity may disguise themselves and post. (Such platforms are Instagram, X, TikTok, etc.) Platforms are aware of the power and ability to make an account and spread information whether it is true or not. This power has spawned a few issues for which the platform must adjust to. However, the liability and need for the platforms to adjust depends.

Here, in the United States, we recognize the need for ethics and the responsibility of upholding a fiduciary duty regardless if an individual is a lawyer or working in another profession that requires such duty. In law, we have the Model Rules of Professional Conduct. We recognize that certain positions in power concerning business transactions can be used in an abusive manner to take advantage of the other party. However, there is a limit to the liability as the United States is a capitalist, free-market economy. Do we want individuals to go ahead and get into business deals without doing their due diligence since the law could help remedy losses due to a business partner not upholding their duties? No, we would not see an end to the amount of cases that could be heard and it would be unfair to the courts, and business partners at some point. Bad business decisions are made all the time just as bad business deals are made. Businesses must adjust and do the work required to ensure they do not make bad choices and find their business suffering from them. Businesses are mature enough to properly face the consequences of a bad decision and work through it to get back into a profitable position.

Well, should these platforms owe a certain duty to the individuals on them? With Section 230 of the 1996 Communications Decency Act, it seems the idea that we have taken as a country is, that it is the user that is liable not the provider of the service for which questionable activity is posted. Therefore liability for activity that can be determined as hateful, inciting violence, or harm will be placed on the account/user who posted the activity, not the individual or company that gives such user a platform (a place for which the user may spread such questionable activity to other users). According to PBS it is a law that dates back to the 1950’s when bookstores were held liable for the content in the books they sold. SCOTUS determined “created a “chilling effect” to hold someone liable for someone else’s content.”

EUROPE

The European Union (EU) has a different feeling on the liability of platforms. The EU, a committee of European nations who come along to meet in the pursuit of peace, believes consumer protection should be the priority when it comes to online “Digital Services”.

The EU established the Digital Services Act, laying out certain requirements for digital service providers, online intermediaries, and platforms, which would ensure “user safety, protect fundamental rights, and create a fair and open online platform environment.” It is fair to determine that Europe sees the internet as a topic too big for one nation to really figure out a way to manage it. By February 2024, the European Union determined the Act must apply to all types of platforms under the EU’s terminology.

The EU chooses to acknowledge that the internet and its growth are unpredictable. Due to its unpredictability, it is best to provide its users with some safety, as it is evident the internet is needed to complete everyday tasks. If the internet is something that individuals need to use to survive in the modern technological world, then it must be regulated. The most effective way to regulate global platforms is to have a group of nations such as the EU come together and decide on a unified form of regulations.

Russia makes its own attempts to regulate platforms in its own country. The way Russia has been handling Google is a prime example. According to Ty Roush of Forbes, “The Russian government is attempting to fine Google about $20 decillion, a figure with 34 zeros that’s exponentially larger than the world’s economy, over a decision by YouTube—owned by Google’s parent Alphabet—to block channels run by Russian state-run media, according to Russian officials.”

In the last few years, Russia has been holding Google, and its Russian Subsidiary accountable for the allegations that Russia has presented. In response, Google has decided to remove itself from Russia over time to the point its presence will eventually be nonexistent in Russia. Google will not and can not pay the fine that Russia is asking.

It seems to regulate a platform like Google, whose presence is all over the world in more than one nation, it will require more than one nation to come and determine a standard for the platforms. The platforms have established that they are here to stay for a while. One singular nation cannot handle a platform of the scale in nature as Google. Google can decide to go ahead and leave a large profitable market like Russia because it is still established in most nations across the globe outweighing the benefits of staying in Russia and fighting their rules to keep its presence.

North America/U.S.A

North America, where large influential nations such as Mexico, Canada, and the United States reside, does not have a unified committee such as the European Union. Therefore, regulation is up to the individual nation to come up with their own set of rules or if they want to come up with any at all. With section 230, the United States has relieved liability for the platforms. However, we are aware that individuals’ mental health worsened as the internet grew. It does not look like the issue of mental health in the nation is getting any better. It will definitely not get better with platforms providing places for individuals or even bots to spread harmful activity.

It is time for nations across the globe to come together and acknowledge the internet, and its platforms are a global matter where users are very susceptible. The only way to protect global citizens from the harm the platforms can provide is to establish a unified mindset on handling the internet. It is best to see just how effective the DSA is for the EU and perhaps, one day, the United Nations may establish a treaty amongst nations where platforms may be regulated with users’ safety as the priority.